RS H.B. 1476 75(R)BILL ANALYSIS

INSURANCE
H.B. 1476
By:  Bonnen
4-11-97
Committee Report (Amended)

BACKGROUND

Texas law is not in compliance with the United States Supreme Court
decision in U.S. Department of Treasury v. Fabe, 113 S. Ct. 2202 (1993).
In the Fabe decision, the Supreme Court found part of the Ohio
receivership statute unconstitutional because the Ohio law permitted the
payment of employee wage claims and general creditor claims ahead of
federal government claims; however, the Court found constitutional that
part of the statute permitting policyholder claims and administrative
expenses to be paid ahead of federal claims. 

The Texas priority scheme in receivership has the same deficiencies held
unconstitutional in the Fabe decision.  The current priority provision of
the Texas Insurance Code, permits payment of administrative expenses,
policyholder claims, employee wage claims, and secured creditor claims
ahead of federal government claims.  Because the Texas priority scheme
could be challenged on the same grounds as the Ohio statutory scheme, the
statute could be held unconstitutional.  In that event, all claims would
have to be paid on a pro-rata basis after federal government claims. 

PURPOSE

This bill amends Article 21.28, Sections 6 and 8, Insurance Code to
correct the priority scheme for receiverships to conform to the Fabe
Supreme Court decision and avoid potential lawsuits relating to
constitutionality.  The bill will affect the Life, Accident, Health, and
Hospital Services Insurance Guaranty Association, the Texas Property and
Casualty Insurance Guaranty Association, and the Texas Title Insurance
Guaranty Association. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not specifically grant
any additional rulemaking authority to a state officer, institution, or
agency. 

SECTION-BY-SECTION ANALYSIS

 SECTION 1. Amends Section 6, Article 21.28, Insurance Code by deleting
language relating to the priority of employee wage claims and adding
language classifying employee wage claims as a Class 1 claim (See Amdt #2)
under Section 8(a) of this article. 

SECTION 2. Amends Section 8(a), Article 21.28, Insurance Code by
establishing new priorities for payment of claims.  Deletes language
classifying employee wage claims as Class 1 claims. Adds language making
federal government claims Class 3 claims.  Adds language protecting the
validity of the provisions of this subsection in the case that one part of
the subsection is held invalid.  Makes conforming changes. 

SECTION 3.  (See Amdt #2) - Amends Section 10(a) and 10(b), Article 21.28
to read as follows:  
(a)  Clarifies that claims are to be paid to the receiver except where the
reinsurer and the insured have a legally permissible agreement which  is
made prior to the insolvency of the insurer and provides that the
reinsurer will pay the insured directly in the event of the insurer's
insolvency or where the reinsurer assumes the insurer's liability to the
insured through an assumption reinsurance agreement, relieving the insurer
of liability. 
 
(b)  Adds language providing that when two or more assuming insurers are
involved in the same claim and a majority of the interested parties elect
to interpose a defense, the expenses shall be  apportioned in accordance
with the reinsurance agreement.   
   
SECTION 4.  Effective Date: September 1, 1997.

SECTION 5.  Emergency Clause.  

EXPLANATION OF AMENDMENTS

Amendment #1:  Amends SECTION 3 of bill by adding Section 10 (a) & (b),
Article 21.28, Insurance Code as follows: 

(a) Committee amendment #1 clarifies current language required in
reinsurance agreements to insure that the proceeds of any reinsurance
agreements with an insolvent insurer are paid to the receiver and for the
benefit of all the claimants against the insolvent insurer except in two
specifically defined exceptions: (i) where the contract or agreement
entered into prior to the proceeding specifically provides for reinsurance
in the event of insolvency of the ceding insurer, or, (ii) where a party
assumes the obligation of the ceding insurer pursuant to an agreement
between the parties.  The reinsurance shall be payable on the basis of
approved claims allowed in the liquidation proceeding pursuant to Section
3(h) of this article. 

(b) Adds language stating that when two or more insurers are involved in
the same claim, expense of the defense shall be apportioned in accordance
with the reinsurance agreement as if the expense had been incurred by the
ceding insurer. 

Committee Amendment #2 :

 Committee amendment #2 corrects a drafting error by deleting the phrase
"Class 4" on page 1, line 17 and replacing it with "Class 1".